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Officer Testifies He Used Baton to Subdue, Not Abuse

Sitting forward in his chair, his face untroubled as he gave matter-of-fact answers, Officer Richard Kern spoke publicly for the first time on Thursday about his 2008 confrontation with Michael Mineo in a Brooklyn subway station. He testified that he had placed his expandable baton on Mr. Mineo’s legs to help subdue him, but had never put it between Mr. Mineo’s buttocks, as prosecutors have charged.

“I was holding his legs down on the ground so he couldn’t kick nobody,” Officer Kern said in State Supreme Court in Brooklyn. Asked by his own lawyer whether he “at any time” stuck the baton “in Mr. Mineo’s rear end,” Officer Kern replied without hesitation, “No, I did not.”

Testifying in his own defense in the trial’s third week, Officer Kern held his poise through nearly two hours on the witness stand, struggling only during cross-examination when a prosecutor asked why he had offered to call an ambulance if, as he had said, Mr. Mineo was not injured. “Pretty much to cover myself, so I wouldn’t get in trouble,” Officer Kern said.

As the central figure in a case with a muddy narrative and conflicting medical evidence, Officer Kern provided a critical counterpoint to Mr. Mineo’s own dramatic testimony laying out the allegations early in the trial. Mr. Mineo, a 26-year-old body piercer, had not been seen in the courtroom since he had been on the stand, but entered as Officer Kern was testifying. He sat between the two lawyers representing him in a multimillion-dollar lawsuit against the city, shaking his head at times and muttering to himself at others.

The much-anticipated testimony of Officer Kern and his partner, Officer Andrew Morales, concluded the defense’s case.

Officer Kern, 26, faces two counts of aggravated sexual abuse that could bring up to 25 years in prison; Mr. Morales and a third officer, Alex Cruz, are charged with hindering prosecution by covering up the abuse, though the judge, Alan D. Marrus, pointed out on Thursday that those charges would only be relevant if Mr. Kern is convicted.

Closing arguments in the case are scheduled to be heard on Tuesday.

Prosecutors contend that Officer Cruz saw Officer Kern sodomize Mr. Mineo with the baton in the Prospect Park subway station, and that Officer Cruz taunted Mr. Mineo afterward and then did not call for an ambulance.

Photo

Officer Richard Kern told his story publicly for the first time on Thursday. He said he has used his baton because Michael Mineo was flailing about.Credit
Ruby Washington/The New York Times

Officer Morales, they said, helped Officer Kern as he tried to hush up the abuse by letting Mr. Mineo go with a summons, rather than arresting him.

Officer Morales, 28, who did not enter the subway station on that day, took the stand after Officer Kern, who had been his partner at Brooklyn’s 71st Precinct for about six months before the confrontation with Mr. Mineo. He talked about his Catholic upbringing on Staten Island, as the son and brother of detectives, and he testified about what he saw of the episode, mostly from the margins.

When Mr. Mineo, who had been smoking marijuana on Flatbush Avenue, fled from officers into the subway station, Officer Morales testified, he stayed behind with a friend of Mr. Mineo’s, who told him that Mr. Mineo was out on bail and trying to avoid jail.

When the other officers emerged from the station and placed Mr. Mineo in a police car, Officer Morales said, he stood 10 or 15 feet away. “He was moving around a whole lot,” Officer Morales testified. “The car was rocking back and forth.”

Later, Officers Morales and Kern took Mr. Mineo to their own unmarked car, Officer Morales said. As Officer Kern wrote out a summons, Officer Morales checked for outstanding warrants on a laptop computer. Two results came back, he said: a sex offense for someone else who shared a birthday with Mr. Mineo, and a notice of “transit recidivism,” which he said he did not fully understand.

“Based on the messages I received back, none of them told me there was an open warrant,” Officer Morales said.

Charles Guria, the lead prosecutor, showed him a printout of what he said should have appeared on Officer Morales’s computer that day. Officer Morales acknowledged that there was an open warrant, but said, “It didn’t appear on that screen that day.”

Little of what Officer Morales said contradicted the testimony given by Officer Kern, a thin 26-year-old who said he was married, owned his own home and had three children.

Photo

Michael Mineo, 26, a body piercer, has accused a police officer of sodomizing him with a baton in a Brooklyn subway station.Credit
Ruby Washington/The New York Times

Wearing a gray suit, Officer Kern took the stand at about 10:45 a.m. His lawyer, John D. Patten, asked Officer Kern to demonstrate how the expandable baton worked. Expertly, with a flip of his hand, he snapped the telescoping segments out, and then slammed the rod onto the floor, to show how it retracted.

He had taken the baton out of its holster that day as he ran into the subway station, he testified. “I didn’t know what I was getting into,” he said. “It was just for my safety.”

He said that he kept the baton closed and held it in his right hand. When he saw two other officers subdue Mr. Mineo — who was “flailing,” he said — he knelt down to help them, using the baton, also called an asp, to hold down Mr. Mineo’s legs.

Someone yelled “cuffs, cuffs, cuffs,” Officer Kern recalled. “I reached to my belt, put away my asp, and pulled out my cuffs,” he said. As Mr. Mineo was led from the station, “he started yelling out accusatory stuff,” Officer Kern said. “He was acting kind of crazy at this point. I thought he was emotionally disturbed.”

He said he heard Mr. Mineo ranting about having been “Tasered” and that a walkie-talkie had been shoved into his buttocks, but dismissed it as “mainly an act.”

Officer Kern testified that when he told Mr. Mineo that he might be let go with a summons, “he did a complete 180,” and stopped yelling. “He was happy, I guess you would say.”

During cross examination, Officer Kern said that he saw something “brown” on the tip of one of Mr. Mineo’s fingers at one point, but assumed it was feces or a burn, and not blood, as Mr. Mineo testified.

Mr. Guria asked, “He didn’t say he was injured?”

Officer Kern replied, “It was never said.”

Even so, Officer Kern said, he offered to call an ambulance. (Mr. Mineo testified earlier that Officer Kern warned him not to go to a police station or hospital.)

“Do you offer every prisoner an ambulance?” Mr. Guria asked.

“If I think he might need one,” Officer Kern replied.

A version of this article appears in print on February 12, 2010, on page A24 of the New York edition with the headline: Officer Testifies He Used Baton to Subdue, Not Abuse. Order Reprints|Today's Paper|Subscribe